White v. Hampton.
1. Amended answer. Leave to file an amended answer includes leaye to withdraw the original. An amended answer embracing the allegations of the original and additional matter, should be treated as a substitute for the original.
2. Sworn .answer: effect or waiver. The Code of 1851 does not deprive a defendant in Chancery of the right to answer under oath, even *182when such answer is expressly waived by the plaintiff. Section 1744 of the Code is to be deemed as applicable only to actions at law.
3. Chancery practice not repealed. The well established rules of chancery practice, when not repealed by legislation, are still in force in this State.
4. Same. Where a respondent in chancery demurred to the complainant’s bill, and then filed an answer, not under oath, after which the demurrer was overruled, whereupon he obtained leave to file an amended answer, which was under oath, it was held that he did not waive his right to file an amended answer under oath by 'the filing of the original.
5. Same. The Court may impose the terms upon which an annexed answer may be filed.
6. Armstrong v. Seott, 2 G. Greene 433 and Brink v. Morton, 2 Iowa 411; cited and re-affirmed; Howard v. Do France, 4 Iowa 524, cited and held inapplicable to this ease.
Appeal from Johnson District Court.
Saturday, June 25.
Bill in equity for an account. The complainant’s bill was filed in September, 1856. In December following, the respondent filed a demurrer; and on the 2d of June, 1857, he filed his answer to the bill, subject to the demurrer. On the 14th of October, 1858, the demurrer to the bill was overruled, and the respondent had leave to amend his answer; which amendment he was ruled to file in thirty days from the adjournment of the term. This amended answer was filed on the 20th of November, 1858, and was under oath. The complainant moved to strike out the jurat to the amended answer, for the reasons: First — That the complainant had waived an answer under oath; and Second — That the original answer was not sworn to. The court ruled that as to all new matter of the amended answer, the same should foe taken and deemed a sworn answer; and as to all matter contained in the first answer, the jurat should be deemed stricken out. From this order, the respondent appeals.
Templin §• Fair all, for the appellant
cited the following authorities, in support of the proposition, that defendant’s answer under oath should be considered as evidence in the *183case : Armstrong v. Scott, 3 G. Greene, 438 ; Pearce v. Wilson, 2 Iowa, 20; Brink v. Morton, lb. 411; Field v. Holland, 6 Cranch 8; Russel v. Clark, 7 lb. 69; Jones v. Slubey, 5 liar. & J. 372 ; Ringgold v. Ringgold, 1 lb. 11; Hardy v. Simmons, 1 Gill. & John. 316; Syrely v. Wheeler, 3 Ir&dell Ch. 599; Schwarz v. TFmdeii, Walker Ch. Rep. 267; Powell v. Powell, 7 Ala. 582; Raysdale v. Buford, 3 Hay. 192 ; Story’s Eq., Jur. sec. 1528; 1 Greenl. Ev. sec. 260; Pollard v. Byman, 1 Day 150 ; Billey v. Barnard, 3 Gill. & J.-170.; Jacks v. Nichols, 1 Seld. 178.
James Grant, and Clark ‡ Brother, for the appellees-.
I. The principle that the answer to a bill cannot be overthrown, except by two witnesses, or one witness, and corroborating circumstances, does not apply to the case- of the execution of a written instrument. Where that is admitted, or proved by the evidence of one witness, the denial of the answer is counteracted. Thomason v. Smithson, 7 Porter; Schwarz v. Wendell, Walker C. R.. 267.
II. Answers which set up new facts in discharge or avoidr anee of the matters of the bill, or allege separate agreements,, independent of those charged in the bill, are not evidence for the defendent, but such allegations must be proved by facts aliunde. Randall v. Phillips, ?> Mason 378; Cannon v. Norton, 14 Yer. 178; 15 lb. 185 ; B.eclcwith v. Butler, 1 Wash. Ya. 224; Gardner v. Harden, 12 Gill. & John. 365 ; Salter v. Spier, 1 Taylor, 318; Johnson v. Pearson, 1 Dev. Eq. 364; Lucas v. Burk Danier, 2 Stewart, 280 ; Planter’s Bank v. Stockman, 1 Freeman, 0. 502; Locke v. Trotter, 10 Yerg. 213 ; Atwood v. Harrison, 5 J. J. Marsh. 329 ; Todd v. Sterrett, 6 lb. 425; Lyon v. Respass, Littell, R. 133; Harris v. Carlyle, 7 Ham. 2 part, 144; S. C. 12. Ohio 160 ; Greene v. Vardiman, 2 Black. 324; Ringgold v. Ringgold, . 1 Harris & Gill, 12, 81, 82; IIait v. Ten Eyeck, John. 'Oh. 89.
StocktoN, J.
The leave to file an amended answer, in-*184eluded the right to withdraw the first. In this instance, the respondent did not ask leave to withdraw the original answer; but in so much as the amended answer covered the same ground, it is to be deemed a substitute for it, even though embracing additional matter.
The case involves the right of the respondent to put in a Sworn answer, although a sworn answer may be waived by the complainant. As was held in the case of Armstrong v. Scott, 3 G. Greene 433, we are of opinion that it is the right of a respondent, in every chancery proceeding, to put in his answer under oath. Of this right, he has not been deprived by the Code. So far as the provisions of the Code authorize the plaintiff in his petition, at his option, to require the answer of the defendant to be given under oath, (sec. 1744) it is to be deemed applicable to actions at law alone. In all suits in chancery, the well established rules applicable to such proceedings, when not changed by legislation, must be .considered as still in force.
The case does not stand on the same ground as that of De France v. Howard, 4 Iowa, 524. In that case permission was refused the respondent to file an amended answer. He was considered as having waived his right to put in an answer under oath, by putting in an, unsworn answer; and it was more than a year afterwards, that he asked to put in his answer under oath. In this case, it appears that the respondent asked and Obtained leave to put in an amended ansAver, 'as soon as the demurrer to the bill was overruled. When this leave was granted, he had the same right to swear to his amended answer, ;as he had to SAvear to his ansAver in the first instance. He is .not to be considered as having put in any answer, until the amended answer Avas filed. The ' Court might have refused permission to the defendant to amend his a,nsAver; or might have granted the permission on terms deemed proper. But when he had leave to file an amended an-SAver, he had the right to put in an ansAver under oath. This *185was allowed in tbe case of Brink v. Morton, 2 Iowa, 411. The order and judgment of the District Court, striking out the jurat from respondent’s answer is reversed, and the answer must be taken and considered as a sworn answer.
Judgment reversed.